Freedom of expression and freedom of the press are fundamental values of a democratic society. The media play an important role in informing the public about events of public interest and in overseeing the activities of state authorities and public officials. However, this right is not unlimited. The Constitution of the Republic of Slovenia stipulates that freedom of expression must be exercised with respect for the rights of other individuals, including the right to privacy, personal dignity, protection of personal data, and honor and reputation.¹

In legal practice, we are increasingly encountering cases where the question arises as to whether media coverage has crossed the line of what is permissible. This is particularly true in cases involving traffic accidents, criminal offenses, court proceedings, or other high-profile events where there is significant public interest, but at the same time there is a risk that information unrelated to informing the public will be disclosed.

Health information is a particularly sensitive area. It falls under the category of specially protected personal data, and its disclosure can constitute a serious invasion of an individual’s privacy. Information regarding diagnoses, injuries, surgical procedures, rehabilitation, or the contents of a discharge summary is not merely medical information but part of an individual’s most intimate sphere. Article 134 of the Obligations Code guarantees judicial protection of personality rights, as an individual may demand the cessation of unlawful infringements on their personality, private, or family life, the prevention of further violations, and the remedy of their consequences. If non-pecuniary damage has resulted from the infringement, Article 179 of the Obligations Code allows for the award of fair monetary compensation for emotional distress caused by the infringement of personality rights, with the amount determined based on the significance of the affected right, the intensity and duration of the consequences, and the purpose of the compensation.

If a media company publishes information from medical records without the individual’s consent, or without a legitimate legal basis or an exceptionally strong public interest, such publication may constitute an unlawful infringement of the individual’s personal rights. In this regard, it is irrelevant whether the individual is a public official, a police officer, a doctor, or any other person. Even individuals who perform public duties retain the right to privacy when the disclosure of their medical data is not necessary for informing the public. Article 6 of the Personal Data Protection Act stipulates that, as a general rule, the processing of personal data in the public sector must be expressly provided for by law, which defines the purpose, scope, types of data, and other essential elements of the processing. When it comes to special categories of personal data, the conditions set forth in Article 9 of Regulation (EU) 2016/679 also apply, which, in principle, prohibits their processing except in cases provided for by law, such as the explicit consent of the individual, compliance with obligations under labor or social law, the protection of vital interests, reasons of substantial public interest, medical purposes, and other cases specified by European Union or Member State law.

In addition to protecting privacy, the media have a duty to publish verified and accurate information. If a media outlet attributes a statement to an individual that he or she never made, or presents facts in a way that creates a false impression of his or her conduct, such reporting may constitute an infringement of his or her personal rights. It is particularly problematic when statements are presented as direct quotes or statements, even though there is no factual basis for them.

When assessing the legality of media reporting, Slovenian courts base their decisions on a balancing of two constitutionally protected rights. On the one hand, there is freedom of expression under Article 39 of the Constitution of the Republic of Slovenia and Article 10 of the European Convention on Human Rights; on the other hand, there is the right to personal dignity, protection of privacy, and personality rights under Articles 34, 35, and 38 of the Constitution of the Republic of Slovenia and Article 8 of the European Convention on Human Rights. None of these rights has absolute priority. In each specific case, it is necessary to determine which right prevails given the circumstances. In Case No. VSRS Judgment II Ips 120/2017, dated February 14, 2019, the Supreme Court held that the conflict between the right to privacy, honor, and reputation on the one hand, and the right to freedom of expression on the other, must be assessed according to the criteria developed by the case law of the European Court of Human Rights (ECHR), and no longer according to the criteria of criminal law regarding defamation. A finding of an infringement of personality rights does not in itself imply unlawfulness; rather, a balancing of the conflicting constitutional rights must be performed. In this regard, the decisive factors are whether the statement contributes to a debate in the public interest, is based on a sufficient factual basis, and does not disclose new protected information.

In such cases, courts generally consider several factors: whether the published information was true, whether there was a public interest in its publication, whether the journalist exercised due professional care, how the information was obtained, whether the published information was necessary for understanding the event, and what consequences the publication had for the affected individual.

The positions of the European Court of Human Rights are also significant; in its decisions, the Court emphasizes that the public interest does not equate to the public’s curiosity about an individual’s private life.² While the media may report on matters of public interest, they must respect the principle of proportionality in doing so. The publication of information that merely satisfies public curiosity generally does not enjoy the same level of legal protection as reporting on issues that contribute to public debate.³

The provisions of the Obligations Code regarding the protection of personality rights may also serve as the legal basis for liability for damages. If there is an unlawful infringement of privacy, honor, reputation, or other personality rights, the affected person may demand that the infringement cease, that further infringements be prohibited, that the consequences of the infringement be remedied, and that fair monetary compensation be awarded for the emotional distress suffered. The amount of compensation depends on the severity of the infringement, its duration, the scope of the publication, and the consequences caused by the publication. If the publication also involves the unlawful disclosure of health data, data protection laws—including the General Data Protection Regulation (GDPR)—may apply in addition to civil liability. Health data falls under the category of special categories of personal data, the processing of which is generally prohibited unless one of the legally defined exceptions applies.

In practice, the question often arises as to whether it is possible to claim damages for the publication of false information. The answer is yes, but the affected individual must prove that the publication constituted an unlawful infringement of their rights and that it caused them legally recognized damages. Non-pecuniary damages most often involve emotional distress resulting from an infringement of honor, reputation, privacy, or personal dignity.

Each case requires an individual assessment of all the circumstances. If you believe that a media outlet has unjustifiably published your medical information, infringed on your privacy, or published false information that has violated your personal rights, it is advisable to seek legal advice as soon as possible. Taking timely action is often crucial for effectively protecting your rights and successfully pursuing claims for damages.

[1] See Article 34 of the URS, Article 35 of the URS, Article 38 of the URS, and Article 39 of the URS.

[2] See Von Hannover v. Germany (ECHR, 2004). In this specific case, the European Court of Human Rights found that Germany had violated Article 8 of the ECHR (the right to respect for private life) because its courts had failed to provide effective protection of Princess Caroline von Hannover’s privacy against the publication of photographs depicting her everyday private life. The Court emphasized that the mere fact that a person is a public figure does not mean that it is permissible to publish photographs of their private life if these do not contribute to a debate in the public interest but merely satisfy public curiosity. When balancing the right to privacy (Article 8 of the ECHR) against freedom of expression (Article 10 of the ECHR), the decisive criterion is the contribution of the published information to a debate in the general public interest, not merely the status of a public figure.

[3] See Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (ECHR, 2017). In this specific case, the judgment represents a significant milestone in the case law of the European Court of Human Rights regarding the relationship between the freedom of expression under Article 10 of the ECHR and the right to respect for private life and the protection of personal data under Article 8 of the ECHR. The Court emphasized that the fact that certain personal data are publicly available under national law does not mean that it is permissible to collect, systematically process, and widely disseminate them without restriction. In making this assessment, particular consideration must be given to the nature and scope of the data processing, its contribution to a debate in the public interest, and its impact on individuals’ privacy. The judgment thus confirms that, when balancing freedom of expression against the protection of personal data, the proportionality test is decisive; in this context, the protection of privacy may justify restrictions even on journalistic activities when the mass publication of personal data does not sufficiently contribute to a debate in the public interest.